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Redundancy following sickness absence was not discrimination arising from disability

Individuals with disabilities (which include cancer as soon as it is diagnosed) are protected from direct discrimination, indirect discrimination, and discrimination arising from disability under the Equality Act 2010.

Discrimination arising from disability occurs where:

A treats B unfavourably because of something arising in consequence of B’s disability; and

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In Basildon & Thurrock NHS Foundation Trust v Weerasinghe, the EAT held that the test for these claims should be whether the disability caused, have the consequence of, or result in “something”? And if so, did the employer treat the claimant unfavourably because of that “something”?

In this case, the EAT considered the approach to be taken where a person’s disability-related absence led to a realisation that their position was no longer needed

The case

The Claimant was a branch manager at an unprofitable company which, from 2012 onwards, was trying to save costs. The Claimant was diagnosed with renal cancer and was absent from work from October to December 2014. Whilst he was away, his absence demonstrated that the branch could function without anyone doing his role. The Respondent’s Operations Manager proposed a restructuring that would save the company up to £40,000 per year, without that branch manager position.

When the Claimant returned to work, there was a period of consultation before he was made redundant in April 2015. He brought claims for unfair dismissal, direct discrimination and discrimination arising from disability.

The employment tribunal rejected his claims. Although there was a link between his (disability-related) absence and his dismissal, his absence was just the context within which the events occurred, and not causative. This was not the same thing, said the tribunal, as saying that he was dismissed because of his absence.

The Claimant appealed, arguing that the tribunal had applied the wrong test. It was sufficient to show a cause or influence, but not that it was a significant or effective cause.

The EAT dismissed the appeal.

In Hall v Chief Constable of West Yorkshire Police, the EAT previously held that there only needed to be a loose connection between a person’s disability and the unfavourable treatment for a discrimination arising from disability claim to succeed. It was sufficient that the something arising from the disability was “a significant influence” or “not the main or the sole cause… but an effective cause” of the less favourable treatment. These words should be taken to mean an influence of cause that influenced the decision-maker, whether consciously or not, to a significant extent.

The employment tribunal had correctly applied the two-stage test in Weersinghe, and was entitled to find (applying Hall) that the Claimant’s absence was not an effective cause of the decision to make him redundant. In this case, it was part of the context, but not so significant as to amount to an effective cause.

What to take away

Hall, Weerasinghe and this case all arose from the disability-related absence of an employee – a fairly common occurrence. The EAT accepted that the Respondent could have discovered by other means that it could do without the Claimant’s position; however, it did not. The case shows, perhaps, an approach in favour of employers and away from the increasing claimant-friendly trend of cases in this area.

Of course, all cases are specific to their own facts, but the EAT’s decision here is an attempt to clarify that there is a different between the facts around what happens to someone, and the cause of what happens to someone. Nevertheless, any employer considering making a disabled employee redundant would be prudent to take legal advice beforehand. As the EAT noted in its decision, there may well be cases where the evidence shows the absence was an effective cause, even if not the main one.